v Anglo Coal (Capcoal Management) Pty Limited

[2024] FWC 3468

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Anglo Coal (Capcoal Management) Pty Limited

(B2024/1618)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 12 DECEMBER 2024

Application to extend the 30 day period in relation to B2024/1407.

This matter concerns the declaration of the result of a protected action ballot PR780740 held in matter B2024/1407 and declared on 13 November 2024.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Anglo Coal (Capcoal Management) Pty Limited has not advised the Commission of any objection to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible employees who were subject to the ballot and are employed by the Employer be extended by a further 30 days.

This order will operate on and from 12 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter under consideration involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia to extend the 30-day period within which industrial action is authorised by a protected action ballot. The application was made in respect of ballot PR780740, which was declared on 13 November 2024, and related to matter B2024/1407. The respondent, Anglo Coal (Capcoal Management) Pty Limited, did not object to the application. The application was brought under section 459(3) of the Fair Work Act 2009, which allows the Fair Work Commission to extend the 30-day period by up to 30 days if certain conditions are met.

The legal issue for the Deputy President to determine was whether the conditions set out in section 459(3) of the Fair Work Act 2009 had been satisfied. The applicant argued that all relevant conditions were met, and therefore the period should be extended by a further 30 days. Anglo Coal did not oppose the application, which meant that the only issue was whether the statutory criteria for an extension were fulfilled. The Deputy President found that the criteria had been met, and thus the application should be granted.

The Deputy President concluded that the statutory requirements for extending the 30-day period had indeed been satisfied. No objections were raised by Anglo Coal, and there was no indication that the period had previously been extended. Given these factors, the Deputy President was satisfied that the application should be approved. Consequently, the 30-day period for the commencement of protected industrial action was extended by a further 30 days, effective from 12 December 2024.

The final order of the Deputy President was that the 30-day period for the commencement of protected industrial action for eligible employees who were subject to the ballot and are employed by the employer be extended by a further 30 days, starting from 12 December 2024. This decision ensures that the union has an additional period to potentially pursue industrial action if negotiations with the employer remain unresolved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established